Orders of Compliance, Cease and Desist Orders, Orders of Denial, and Other Orders, 46964-46968 [2014-18294]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 79, Number 155 (Tuesday, August 12, 2014)]
[Rules and Regulations]
[Pages 46964-46968]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18294]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 13

[Docket No.: FAA-2014-0505; Amdt. No. 13-36]
RIN 2120-AK43


Orders of Compliance, Cease and Desist Orders, Orders of Denial, 
and Other Orders

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Immediate final rule; request for comments.

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SUMMARY: This rulemaking provides the opportunity for an informal 
conference with an FAA attorney before an order is issued under the 
FAA's regulation covering orders other than certificate action and 
civil penalty orders. This change is necessary to provide additional 
fairness and process to those persons who are subject to such an order, 
and is consistent with the process available in other enforcement 
actions. These conferences may result in either a resolution of the 
matter or a narrowing of the issues, thereby conserving resources for 
respondents and the FAA.

DATES: Effective October 14, 2014.
    Submit comments on or before September 11, 2014.

ADDRESSES: Send comments identified by docket number, FAA-2014-0505 
using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.
    Docket: Background documents or comments received may be read at 
https://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or Docket Operations in Room W12-140 of the 
West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, 
DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: For technical or legal questions 
concerning this action, contact Edmund Averman, Office of the Chief 
Counsel (AGC-210), Federal Aviation Administration, 800 Independence 
Avenue SW., Washington, DC 20591; telephone (202) 267-3147; email 
Ed.Averman@faa.gov.

SUPPLEMENTARY INFORMATION:

Good Cause for Immediate Adoption

    Section 553(b)(3)(A) of the Administrative Procedure Act (APA) (5 
U.S.C. 553) authorizes agencies to dispense with notice and comment 
procedures for rules when the agency for ``good cause'' finds that 
those procedures are ``impracticable, unnecessary, or contrary to the 
public interest.'' Under this section, an agency, upon finding good 
cause, may issue a final rule without seeking comment prior to the 
rulemaking.
    The FAA finds that notice and public comment to this immediately 
adopted final rule are impracticable, unnecessary, and contrary to the 
public interest. This rulemaking provides the opportunity for an 
informal conference with an FAA attorney before an order is issued 
under Sec.  13.20. Since this change provides additional fairness and 
process to those persons who are subject to such an order, this 
amendment should not adversely impact those covered by an order. In 
fact, these conferences may result in a resolution of the matter or, in 
some cases, a narrowing of the issues, thereby conserving resources for 
respondents and the FAA. Finally, these conferences are optional.

[[Page 46965]]

    Therefore, the FAA has determined that notice and public comment 
are unnecessary.

Comments Invited

    For the reasons noted above, the FAA is adopting this final rule 
without prior notice and public comment. The Regulatory Policies and 
Procedures of the Department of Transportation (DOT) (44 FR 1134; 
February 26, 1979), provide that, to the maximum extent possible, 
operating administrations for the DOT should provide an opportunity for 
public comment on regulations issued without prior notice.
    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The agency 
also invites comments relating to the economic, environmental, energy, 
or federalism impacts that might result from adopting the changes. The 
most helpful comments reference a specific portion of this rule, 
explain the reason for any recommended change, and include supporting 
data. To ensure the docket does not contain duplicate comments, please 
send only one copy of written comments, or, if you are filing comments 
electronically, please submit your comments only one time.
    The FAA will file in the docket all comments we receive, as well as 
a report summarizing each substantive public contact with FAA personnel 
concerning this rulemaking. Once the comment period closes, the FAA 
will review and dispose of the comments filed in the rulemaking docket. 
Because this is a final rule, the FAA will publish a disposition of 
comments in the Federal Register. Based on the comments received, the 
FAA will state whether it has decided that (i) no action is necessary 
other than publishing the disposition of comments in the Federal 
Register, or (ii) the FAA should prepare a revised final rule.

Proprietary or Confidential Business Information

    Do not file in the docket information that you consider to be 
proprietary or confidential business information. Send or deliver this 
information directly to the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this document. Mark the information that 
is considered proprietary or confidential. If the information is on a 
disk or CD ROM, mark the outside of the disk or CD ROM and also 
identify electronically within the disk or CD ROM the specific 
information that is proprietary or confidential.
    Under 14 CFR 11.35(b), when the FAA is aware of proprietary 
information filed with a comment, the agency does not place it in the 
docket. The FAA holds it in a separate file to which the public does 
not have access, and the agency places a note in the docket that it has 
received it. If the FAA receives a request to examine or copy this 
information, the FAA treats it as any other request under the Freedom 
of Information Act, 5 U.S.C. 552. The FAA processes such a request 
under the DOT procedures found in 49 CFR part 7.

Authority for this Rulemaking

    The FAA's authority to issue rules on aviation safety is found in 
Title 49 of the United States Code. Subtitle I, Section 106 describes 
the authority of the FAA Administrator. Subtitle VII, Aviation 
Programs, describes in more detail the scope of the agency's authority.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A, Subpart III, Section 44701, ``General 
requirements.'' Under that section, the FAA is charged with prescribing 
regulations required in the interest of safety for the design and 
performance of aircraft; regulations and minimum standards in the 
interest of safety for inspecting, servicing, and overhauling aircraft; 
and regulations for other practices, methods, and procedures the 
Administrator finds necessary for safety in air commerce.

I. Discussion of the Final Rule

    Section 13.20 of 14 CFR part 13 (Orders of compliance, cease and 
desist orders, orders of denial, and other orders) applies to a variety 
of orders issued by the Administrator to carry out the provisions of 
the Federal Aviation Act of 1958, as amended, the Hazardous Materials 
Transportation Act, the Airport and Airway Development Act of 1970, and 
the Airport and Airway Improvement Act of 1982, or the Airport and 
Airway Improvement Act of 1982 as amended by the Airport and Airway 
Safety and Capacity Expansion Act of 1987. This section does not apply 
to orders issued under the authority of 49 U.S.C. 46301 (assessing 
civil penalties) or 49 U.S.C. 44709 (amendments, modifications, 
suspensions, and revocations of certain certificates).
    Paragraph (c) of Sec.  13.20 allows, within 30 days after service 
of the notice, a person subject to an order to reply in writing or 
request a hearing in accordance with subpart D of part 13. This rule 
amends that paragraph to add a third option--an opportunity to be heard 
in an informal conference with an FAA attorney. The FAA has determined 
that this third option offers additional fairness and process to those 
persons who would be the subject of an order issued under Sec.  13.20. 
In addition, since this opportunity is already available to persons 
subject to certificate actions under Sec.  13.19 and civil penalty 
actions under Sec. Sec.  13.16 and 13.18, it makes sense to add it to 
Sec.  13.20 for consistency and fairness.
    Through the mechanism of the informal conference in these other 
contexts, matters are sometimes resolved or the issues are narrowed. 
This results in conserving resources, both for respondents and the FAA. 
The FAA expects these benefits will also be realized for orders issued 
under Sec.  13.20 when the informal conference option is selected.
    This rule also amends paragraph (d) of Sec.  13.20 to provide for 
these informal conferences. Paragraph (d) currently allows a person who 
files a reply under paragraph (c) to further request a hearing in 
accordance with Subpart D of part 13 as to any charges not dismissed or 
not subject to a consent order. The option to request a hearing is 
expanded to include persons who requested an informal conference.
    Concurrent with the publication of this rule, the FAA is publishing 
a final rule entitled ``Repair Stations.'' One of the main purposes of 
that rulemaking is to amend the certificate application section to 
provide the FAA with the ability to deny an application for a repair 
station certificate to an applicant who previously held a repair 
station certificate that was revoked or who intends to use certain key 
management personnel or other persons who could exercise control over 
the repair station's operations and who had materially contributed to 
the circumstances that caused a previous repair station revocation. 
That action is necessary to provide the FAA with the authority to deny 
a repair station certificate to an applicant who has violated part 145 
regulations to an extent that revocation of the certificate was 
warranted or who intends to use key decision makers who materially 
contributed to a prior revocation.
    During the FAA's internal review of the Repair Stations final rule, 
the FAA noted that commenters raised due process issues with respect to 
how the FAA would determine who these persons were, how it would be 
determined that they materially contributed to a prior revocation, and 
what process would be afforded them to challenge such determinations. 
When considering the commenters' concerns, the FAA noticed that, 
although FAA certificate actions and civil penalty actions provide for 
the opportunity for an informal conference with an FAA attorney, that 
option is not provided to

[[Page 46966]]

persons who receive notice of a proposed order under Sec.  13.20. The 
FAA believes that an amendment to part 13 is necessary to provide the 
informal conference option to all persons subject to an order issued 
under Sec.  13.20. This provides a measure of fairness to affected 
persons, and because matters are sometimes resolved or the issues 
narrowed at the informal conference stage, this amendment has the 
potential to conserve resources for both respondents and the FAA.
    To respond to those concerns, the FAA is adding a paragraph to the 
``denial authority'' section (Sec.  145.51(f)) in the Repair Station 
Final Rule that provides that those persons are subject to an order 
under the procedures set forth in Sec.  13.20. That section provides 
for notice and the opportunity for a hearing under subpart D of part 
13.
    In addition, we are making a minor clarifying change to paragraph 
(d). The current rule provides that, if a person files a reply, the 
person may request a hearing as to any charges not dismissed as a 
result of the agency's consideration of the reply. We are replacing the 
word ``dismissed'' with ``withdrawn'' because it more accurately 
reflects the role of the agency prior to a hearing. As provided in 
Sec.  13.20(f), it is the role of the Hearing Officer at the close of 
the hearing to either dismiss the notice or issue an order. This change 
also aligns the agency's procedures in other enforcement contexts, for 
example, in civil penalty and certificate action matters.

II. Summary of the Costs and Benefits of the Final Rule

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 and Executive Order 13563 direct 
that each Federal agency shall propose or adopt a regulation only upon 
a reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. 
L. 96-354) requires agencies to analyze the economic impact of 
regulatory changes on small entities. Third, the Trade Agreements Act 
(Pub. L. 96-39) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. In 
developing U.S. standards, this Trade Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4) requires agencies to prepare a written assessment of 
the costs, benefits, and other effects of proposed or final rules that 
include a Federal mandate likely to result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more annually (adjusted for inflation with 
base year of 1995). This portion of the preamble summarizes the FAA's 
analysis of the economic impacts of this final rule.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it to be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this final rule. The reasoning 
for this determination follows:
    The amendment to Sec.  13.20 allows for informal conference with 
FAA Counsel for those persons subject to orders of compliance, cease 
and desist orders, orders of denial, and other orders. This amendment 
parallels due process already afforded to persons of other enforcement 
actions (i.e. Sec.  13.16 and Sec.  13.18--civil penalty actions, and 
Sec.  13.19--certificate actions). Since the amendment provides 
voluntary opportunity for issues to be resolved, or at least narrowed, 
prior to a formal hearing, a positive net benefit is realized.
    Since the expected outcome will be a minimal impact with positive 
net benefits, a regulatory evaluation was not prepared.
    The FAA has, therefore, determined that this final rule is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures.

III. Regulatory Notices and Analyses

A. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation.'' To achieve this principle, agencies are 
required to solicit and consider flexible regulatory proposals and to 
explain the rationale for their actions to assure that such proposals 
are given serious consideration.'' The RFA covers a wide-range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA. 
However, if an agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities, 
section 605(b) of the RFA provides that the head of the agency may so 
certify and a regulatory flexibility analysis is not required. The 
certification must include a statement providing the factual basis for 
this determination, and the reasoning should be clear.
    This final rule provides a positive net benefit to persons subject 
to orders the opportunity to have informal conference with FAA Counsel 
prior to a formal hearing. Thus, this rule affects persons, not small 
entities.
    If an agency determines that a rulemaking will not result in a 
significant economic impact on a substantial number of small entities, 
the head of the agency may so certify under section 605(b) of the RFA. 
Therefore, as provided in section 605(b), the head of the FAA certifies 
that this rulemaking will not result in a significant economic impact 
on a substantial number of small entities.

B. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. The FAA has 
assessed the potential effect of this final rule and determined that it 
offers the same positive net benefit to all persons regardless of 
nationality and thus has a neutral trade impact.

[[Page 46967]]

C. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $151 million in lieu of $100 
million. This final rule does not contain such a mandate; therefore, 
the requirements of Title II of the Act do not apply.

D. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. The FAA has determined that 
there is no new requirement for information collection associated with 
this final rule.

E. International Compatibility and Cooperation

    (1) In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
reviewed the corresponding ICAO Standards and Recommended Practices and 
has identified no differences with these regulations.
    (2) Executive Order 13609, Promoting International Regulatory 
Cooperation, promotes international regulatory cooperation to meet 
shared challenges involving health, safety, labor, security, 
environmental, and other issues and to reduce, eliminate, or prevent 
unnecessary differences in regulatory requirements. The FAA has 
analyzed this action under the policies and agency responsibilities of 
Executive Order 13609, and has determined that this action would have 
no effect on international regulatory cooperation.

F. Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this rulemaking action qualifies for the categorical 
exclusion identified in Chapter 3, paragraph 312d and involves no 
extraordinary circumstances.

IV. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. The agency determined 
that this action will not have a substantial direct effect on the 
States, or the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, and, therefore, does not have Federalism 
implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The agency has determined that it 
is not a ``significant energy action'' under the executive order and it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

V. How To Obtain Additional Information

A. Rulemaking Documents

    An electronic copy of a rulemaking document may be obtained by 
using the Internet--
    1. Search the Federal eRulemaking Portal (https://www.regulations.gov);
    2. Visit the FAA's Regulations and Policies Web page at https://www.faa.gov/regulations_policies/ or
    3. Access the Government Printing Office's Web page at: https://www.gpo.gov/fdsys/.
    Copies may also be obtained by sending a request (identified by 
notice, amendment, or docket number of this rulemaking) to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

B. Comments Submitted to the Docket

    Comments received may be viewed by going to https://www.regulations.gov and following the online instructions to search the 
docket number for this action. Anyone is able to search the electronic 
form of all comments received into any of the FAA's dockets by the name 
of the individual submitting the comment (or signing the comment, if 
submitted on behalf of an association, business, labor union, etc.).

C. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. A small entity with questions regarding this document, 
may contact its local FAA official, or the person listed under the FOR 
FURTHER INFORMATION CONTACT heading at the beginning of the preamble. 
To find out more about SBREFA on the Internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 13

    Administrative practice and procedure, Air transportation, 
Hazardous materials transportation, Investigations, Law enforcement, 
Penalties.

The Amendment

    In consideration of the foregoing, the Federal Aviation amends 
Chapter I of Title 14, Code of Federal Regulations, as follows:

PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES

0
1. Revise the authority citation for part 13 to read as follows:

    Authority:  18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 
106(g), 5121-5128, 40113-40114, 44103-44106, 44701-44703, 44709-
44710, 44713, 46101-46111, 46301, 46302 (for a violation of 49 
U.S.C. 46504), 46304-46316, 46318, 46501-46502, 46504-46507, 47106, 
47107, 47111, 47122, 47306, 47531-47532; 49 CFR 1.47.

0
2. Amend Sec.  13.20 by revising paragraphs (c) and (d) to read as 
follows:


13.20   Orders of compliance, cease and desist orders, orders of 
denial, and other orders

* * * * *
    (c) Within 30 days after service of the notice, the person subject 
to the order may''
    (1) Request an opportunity to be heard in an informal conference 
with an FAA attorney;
    (2) Reply in writing; or
    (3) Request a hearing in accordance with subpart D of this part.
    (d) If an informal conference is held or a reply is filed, as to 
any charges not withdrawn or not subject to a consent order, the person 
subject to the order may, within 10 days after receipt of notice that 
the remaining charges are not withdrawn, request a hearing in 
accordance with subpart D of this part.
* * * * *


[[Page 46968]]


    Issued under authority of 49 U.S.C. 106 and 44701 in Washington, 
DC, on July 17, 2014.
Michael P. Huerta,
Administrator.
[FR Doc. 2014-18294 Filed 8-11-14; 8:45 am]
BILLING CODE 4910-13-P